GAO Sustains Challenge to Evaluation Language Requiring a Joint Venture Protégé Member to Have the Same Experience as Other Offerors

The Government Accountability Office sustained a protest (Innovate Now, LLC, B-419546, April 26, 2021) against an Air Force solicitation that required the protégé member of any mentor-protégé joint venture offeror to meet the same experience requirements as all other offerors.  Specifically, the RFP required that a joint venture offeror must provide a minimum of at least one work sample from each member of the joint venture that reflected a federal contract performed by the entity as a prime contractor on a non-fixed price basis for at least six months within the last five years.  The protester argued that the language directly violated the past performance, experience, and capabilities evaluation criteria for small business joint ventures in 13 C.F.R. § 125.8(e).  That provision explains that “a procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.”  SBA, whose opinion GAO solicited, agreed with the protester, noting that while 13 C.F.R. § 125.8(e) does not mandate a particular level or type of experience and provides agencies with the flexibility to determine the appropriate criteria, protégés must be held to a different experience standard from mentors and other offerors.  The underlying rationale for SBA’s rule, and the mentor-protégé relationship, is that a protege may not be able to meet all performance requirements by itself and therefore can gain experience through the help of its mentor and joint venture partner.  Ultimately, GAO ruled that the RFP’s experience requirement violates the express prohibition in SBA’s regulations.